Bill C-13, and the first six cases prosecuted in Canada after it became law in 2015, treat the non-consensual distribution of intimate images primarily as a privacy violation rather than an act of gender-based violence, argues PhD student Moira Aikenhead.

‘Revenge porn’ law focuses too much on privacy: UBC student

It’s been nearly three years since it became illegal in Canada to post what’s known as revenge porn online. A PhD student at UBC is now looking at how well the law has protected women.

Law student Moira Aikenhead says prosecuting those who distribute intimate images of someone without his or her permission has focused largely on privacy violation, when it should be on gender-based violence.

In her research, published recently in the Canadian Journal of Women and the Law, Aikenhead examines the first six cases tried in the country under Bill C-13, and questions what is considered by law to be an “intimate” image.

Bill C-13 describes it as one where the person is nude or has exposed their genitals or anal regions in a sexually explicit way and at the time of the recording had a reasonable expectation of privacy, as well as when the images were shared.

“I thought this focus on an expectation of privacy was odd, because what circumstances can you envision where a person posts intimate images of another person online, without their consent, but hasn’t breached their privacy?” Aikenhead says.

Similar to “victim-blaming” in sexual assault cases, Aikenhead says, the way Bill C-13 is structured means victims could be criticized when it comes to photos, too.

“While [the bill] ostensibly gives women control over their bodies as well as images of their bodies, too much focus on consent means there’s going to be scrutiny of the victim’s behaviour, which may include blaming her for having allowed the images to be taken in the first place, or not having been more careful about who she shared them with.”

Aikenhead says the scrutiny should be on the perpetrator, who knowingly and “often maliciously” ignored the victim’s wishes by distributing the images.

“It’s meant to be an act of gender-based violence and intimidation, so it’s important to frame the crime as that type of crime rather than simply an invasion of privacy,” she says.

“Judges in future cases must not lose sight of the gendered nature of this crime and its harms, and should adopt a dignity-based approach to privacy to ensure women do not easily lose the ability to control the dissemination of their intimate images.”

Bill C-13 follows advocacy by B.C. mom

The Conservative-led Bill C-13, also known as the anti-cyberbullying bill, was put in the spotlight following the tragic cases of Nova Scotia’s Rehtaeh Parsons and B.C.’s Amanda Todd.

Parsons, 17, died after being taken off life support following a suicide attempt in April 2013 – stemming from relentless harassment after a photo was circulated of her being allegedly sexually assaulted.

Six teenage boys later faced charges in the distribution of intimate images without consent of up to 20 young girls.

Two teens also pleaded guilty to child pornography charges for their roles in what happened to Parsons.

Carol Todd, whose daughter Amanda, killed herself after she was blackmailed and harassed over an intimate photo that was posted online in 2012, has criticized parts of the bill for removing privacy rights for people who have been hurt by revenge porn.

“We should not have to choose between our privacy and our safety,” she told the Senate in 2015. “We should not have to sacrifice our children’s privacy rights to make them safe from cyberbullying, sextortion, and revenge pornography.”

Aydin Coban is accused of extortion, possession of child porn and attempting to lure a child online in relation to Todd’s case.

He is set to be extradited to Canada following his trial in Amsterdam a year ago, when he was convicted of fraud and blackmail via the Internet in an unrelated case.

The 28-year-old has appealed the extradition and denies involvement in any cyberbullying.